PESTAÑO, and EVELYN PESTAÑO, through undersigned counsel, respectfully state that –

PREFATORY STATEMENT

The Office of the Ombudsman was created under Article XI of the 1987 Constitution as an independent office intended to serve as “protector of the people” principally through taking prompt action on complaints filed against public officials and other employees of the government.

The primordial purpose of the Office the Ombudsman is to enforce public accountability among public officials, through, among other measures, investigating on its own, or upon complaint of any person any act or omission by a public official that appears to be “illegal, unjust, improper, or inefficient,” and, in appropriate cases, instituting the corresponding directives to or initiating prosecution of the responsible officials.

The Ombudsman is thus vested with expansive authority and broad discretion in fulfilling its mandate of enforcing public accountability within the ranks of the government service. It is expected not to merely stand as a passive receiver of complaints from the public, but to take a proactive role in rooting out corruption and impropriety in government. It is empowered not merely to enforce the express commands of black letter law but to take action on any act or omission that may be “unjust, improper, or inefficient.”

For in the end, the Office of the Ombudsman is envisioned as the ultimate bulwark that the Filipino people may rely on against government abuse and official corruption, from the lowest to the highest echelons of the public service.

Sadly, the current holder of this crucial Office, Ma. Merceditas Navarro-Gutierrez – in the nearly five years since her appointment to fill the vacancy created by the resignation of the previous Ombudsman, Simeon V. Marcelo – has failed to live up to this role.

During her watch, the Office of the Ombudsman, far from being an effective and reliable recourse for ordinary citizens seeking succor and relief from government abuse, has become a place where complaints of official wrongdoing go to languish, wither, and ultimately be forgotten. In many instances, some of which will be discussed in this Impeachment Complaint,

Ombudsman Navarro-Gutierrez has unconscionably neglected to ensure that prompt and effective action is taken on complaints from the public filed with her office.

Similarly, the Office of the Ombudsman, under the stewardship of Navarro-Gutierrez, has become alarmingly and unjustifiably passive in taking on prominent issues involving corruption and malfeasance at the highest levels of government. Instead of instituting investigations on its own, as it is expressly empowered – in fact, arguably required – to do so by

the Constitution, it has sat quietly even in the face of the most scandalous reports of official impropriety, waiting for private citizens, or other government offices, to take up the very causes it was created to address.

This Impeachment Complaint will likewise take up some of these

instances.

Finally, the effectiveness of the Office of the Ombudsman under Navarro-Gutierrez in holding erring public officials to account by instituting successful prosecutions before the appropriate courts and tribunals has likewise degraded to a distressing and unacceptable degree. As this Impeachment Complaint will again show, an empirical and objective assessment of the performance as prosecutor of the Office of the Ombudsman under NavarroGutierrez, clearly establishes an intolerable, if not criminal, level of incompetence.

All these failings, taken together, indubitably amount to a betrayal of the public trust, and a culpable violation of the constitutionally established duties of the Ombudsman, on the part of Ombudsman Navarro-Gutierrez.

This fact, in the view of the Complainants, provides more than ample basis for impeaching Ma. Merceditas Navarro-Gutierrez as Ombudsman of

the Philippines under Article XI, Section 2 of the Constitution.

NATURE OF THE COMPLAINT

This is a verified Impeachment Complaint brought under Article XI, Section 2 of the Constitution against Ombudsman Ma. Merceditas Navarro-Gutierrez for any or all of the following constitutional grounds: (i) betrayal of public trust, and (ii) culpable violation of the Constitution.

PARTIES

1) Ma. Merceditas Navarro-Gutierrez is the current holder of the Office of the

Ombudsman, pursuant to her appointment to fill the vacancy created by the resignation of former Ombudsman Simeon V. Marcelo in 1995. She may be served notices and other processes at the Office of the Ombudsman, Ombudsman Building, Agham Road, North Triangle, Quezon City.

2) Complainant Risa Hontiveros-Baraquel is a Filipino, of legal age, and a former member of the House of Representatives representing the Akbayan Citizens’ Action Party, of which she remains an active member. She is currently a private citizen vigorously engaged in various advocacies for the public interest. She may be served with notices and other processes at the

3) Complainant Danilo D. Lim is a Filipino, of legal age, and a former Brigadier General in the Armed Forces of the Philippines. He may be served with notices and other processes at 14 Byron Street, Filinvest II, Batasan Hills, Quezon City.

4) Complainants Felipe and Evelyn Pestaño are Filipinos, of legal age, and the parents of the late Ensign Philip Andrew Pestaño, whose death in 1995 was recently declared by the United Nations Human Rights Committee (UNHRC) as a “homicide,” and with regard to which the Philippine government failed to conduct an “impartial, effective, and timely” investigation.

They may be served notices and other processes at 45 C. Salvador Street, Loyola Heights, Quezon City.

GROUNDS FOR IMPEACHMENT

I.

OMBUDSMAN MA. MERCEDITA NAVARRO-GUTIERREZ BETRAYED THE PUBLIC TRUST.

i.

THE DISMAL AND UNCONSCIONABLY LOW CONVICTION RATES ACHIEVED BY THE OFFICE OF THE OMBUDSMAN FROM 2008 ONWARD INDICATE A CRIMINAL LEVEL OF INCOMPETENCE AMOUNTING TO GRAVE DERELICTION OF DUTY WHICH CONSTITUTES A CLEAR BETRAYAL OF PUBLIC TRUST.

ii.

THE UNREASONABLE FAILURE OF THE OMBUDSMAN TO TAKE PROMPT AND IMMEDIATE ACTION, IN VIOLATION OF ITS OWN RULES OF PROCEDURE, ON THE COMPLAINTS FILED AGAINST VARIOUS PUBLIC OFFICIALS INCLUDING FORMER PRESIDENT GLORIA MACAPAGAL-ARROYO, AND HER HUSBAND JOSE MIGUEL T. ARROYO WITH REGARD TO THE NBN-ZTE BROADBAND PROJECT CONSTITUTES BETRAYAL OF PUBLIC TRUST.

iii.

THE INEXCUSABLE DELAY OF THE OMBUDSMAN IN CONDUCTING AND CONCLUDING ITS INVESTIGATION INTO THE WRONGFUL DEATH OF ENSIGN PHILIP ANDREW PESTAÑO ABOARD A PHILIPPINE NAVY VESSEL CONSTITUTES A BETRAYAL OF PUBLIC TRUST.

iv.

THE DECISION OF THE OMBUDSMAN UPHOLDING THE “LEGALITY” OF THE ARREST AND INVOLUNTARY DETENTION OF THEN REPRESENTATIVE RISA HONTIVEROS-BARAQUEL BY THE PHILIPPINE NATIONAL POLICE IN MARCH 2006 IN VIOLATION OF THE EXPLICIT RULES PROVIDED IN THE REVISED PENAL CODE AND AS ESTABLISHED BY JURISPRUDENCE CONSTITUTES A BETRAYAL OF PUBLIC TRUST.

v.

THE FAILURE OF THE OMBUDSMAN TO CONDUCT AN INVESTIGATION INTO POSSIBLE WRONGDOING OR IMPROPRIETY WITH REGARD TO THE P1,000,000.00 DINNER FOR THE PRESIDENTIAL PARTY AT LE CIRQUE RESTAURANT IN NEW YORK IN AUGUST 2009 DESPITE WIDESPREAD MEDIA COVERAGE AND PUBLIC CLAMOR, AND A FORMAL LETTER FROM REPRESENTATIVE WALDEN F. BELLO CALLING FOR AN INQUIRY CONSTITUTES BETRAYAL OF THE PUBLIC TRUST.

II.

OMBUDSMAN MA. MERCEDITAS NAVARRO-GUTIERREZ PERFORMED ACTS AMOUNTING TO CULPABLE VIOLATION OF THE CONSTITUTION.

vi.

THE REPEATED FAILURES OF THE OMBUDSMAN TO TAKE PROMPT ACTION ON A WIDE VARIETY OF CASES INVOLVING OFFICIAL ABUSE AND CORRUPTION VIOLATES ARTICLE XI, SECTION 12 AND ARTICLE III, SECTION 16 OF THE CONSTITUTION, WHICH MANDATE PROMPT ACTION AND SPEEDY DISPOSITION OF CASES.

vii.

THE REFUSAL OF THE OMBUDSMAN TO GRANT READY ACCESS TO PUBLIC RECORDS SUCH AS THE STATEMENT OF ASSETS AND LIABILITIES AND NET WORTH (SALN) REQUIRED OF ALL PUBLIC OFFICERS UNDER REPUBLIC ACT NO. 6713 CONSTITUTES A CULPABLE VIOLATION OF ARTICLE XI, SECTION 13(6) AND ARTICLE III, SECTION 7 OF THE CONSTITUTION.

DISCUSSION

I.

BETRAYAL OF PUBLIC TRUST

i. The low conviction rates of achieved by the Office of the Ombudsman

since 2008 constitute a dereliction of duty that amounts to betrayal of public trust.

5) Prosecution of offenses committed by public officers is one of the principal duties of the Office of the Ombudsman. Under Article XI, Section 7 of the Constitution, as implemented by Section 11 of Republic Act No. 6770 (the Ombudsman Law), prosecution of cases is conducted by the Office of the Special Prosecutor, under the supervision and control and upon authority of the Ombudsman. Ultimately, therefore, responsibility for the performance of the Office of the Special Prosecutor rests with the Ombudsman.

6) Since 2008, however, the performance of the Ombudsman, with specific regard to its prosecutorial function, has degraded to an unacceptable degree. According to a 2009 report by 4 the Transparency and Accountability Network (a copy of which is attached herewith as Annex “A”), from January to June 2008, the conviction rate for Ombudsman-conducted prosecutions

went down from 55% for the previous year, to a measly 14.43%, or nearly a quarter of the rate for 2007. The worst months were March, with a 5% conviction rate, May with 3%, and June with zero percent. As of 31 October 2008, the rate stood at 7%, with 25 successful convictions in 349 cases filed.

7) More recently, the Sandiganbayan released a report that indicated that for the first four months of 2010, the Ombudsman has achieved a conviction rate of 12.9%, garnering 8 convictions in 62 cases filed before the court. This is less than half the total average conviction rate from 1979-2008, where the government secured 8,477 convictions out of 29,531 cases filed, for a 28.71% conviction rate.

8) Compared to the rates in other countries a 7% conviction rate (or even the more generous 12.9% or even 14.43% rate) is atrociously low. In Malaysia, for instance, the Malaysian Anti Corruption Commission, its equivalent of an anti-graft agency, registered conviction rates ranging from 64.4% in the trial courts to 86.2% in the appellate courts. Indonesia has an even more impressive conviction rate, with its Corruption Eradication Commission claiming a 100% conviction rate out of 86 cases filed.

9) More generalized prosecution services in other countries also have significantly higher conviction rates than the pathetic 7% registered by the Ombudsman. India has an average conviction rate of 40.8%, the United States rate (by state) ranges from 65 to 80%, while the United Kingdom has a 74% conviction rate.

10) The low conviction rates achieved by the Ombudsman, roughly 1 in 10 cases actually leads to a conviction, indicates a level of competence far below that which can be reasonably expected by the public from an anti-graft body. Low conviction rates either indicate poor assessment and preparation in choosing which cases to file, or subpar handling of the actual

prosecution once a case is in court. Former Special Prosecutor Dennis Villa-Ignacio has publicly attributed this decline in performance to deliberate understaffing of the Office of the Special Prosecutor (OSP) by Navarro-Gutierrez.

11) This dismal performance, by any standard, a level of incompetence that amounts to dereliction of duty, which, in turn, constitutes betrayal of the public trust.

ii. The failure of the Ombudsman to act promptly on the complaints filed

in relation to the NBN-ZTE scandal constitutes betrayal of public trust.

12) On 9 October 2007, then Representative Risa Hontiveros-Baraquel filed a complaint before the Ombudsman against former Commission on Elections Chair Benjamin Abalos in relation with the NBN-ZTE Broadband scandal.

13) Despite the explicit provisions of the Ombudsman’s own rules, in particular its adoption of Rule 112, Section 3 of the Rules of Court, which required that it take action within ten (10) days from receipt of the complaint, the Ombudsman only took cognizance of the case on 18 February 2008, or over four months later, when it called for a public hearing on the issue.

14) During the actual hearings of the case, therein respondents, including the aforementioned former Chair Abalos, were given ten (10) days, or up to 28 February 2008, within which to file their counter-affidavits. Respondents failed to do so, yet, inexplicably, the Ombudsman still allowed them to submit late responses during the 4 March 2008 hearing of the same case.

15) These deviations from procedure, particularly the inexcusable and unexplained delay of over four (4) months before any action was taken on the complaint, in violation of the Ombudsman’s own rules of procedure, indicate either incompetence or deliberate accommodation that amounts to a betrayal of public trust, especially in view of the fact of the heightened public scrutiny of the NBN-ZTE scandal, and the alleged involvement of highranking government officials, up to and including President Gloria Macapagal-Arroyo and her husband, Jose Miguel Arroyo. The Ombudsman can hardly be considered an adequate protector of the people if she fails to take prompt action on complaints, as mandated by Article XI, Section 12 of the Constitution, in flagrant breach of her Office’s own rules, particularly for

high-profile cases involving charges of official corruption at the highest levels.

iii. The delay in the investigation of the wrongful death of Navy Ensign

Philip Andrew Pestaño is a clear betrayal of public trust.

16) On 27 September 1995, Ensign Philip Andrew Pestaño died on board the naval vessel BRP Bacolod City where he was serving as cargo officer. The “official version” of the Philippine Navy was that Ensign Pestaño committed suicide with a firearm.

17) The parents of Ensign Pestaño doubted this conclusion, especially since he had told them earlier that the BRP Bacolod City was “dirty” and that it carried illegal cargo in the form of P1 Billion worth of shabu. In addition, the parents on 26 September 1995, the day before their son’s death, received an anonymous phone call warning that their son’s life was in danger. They thus filed a complaint with the Office of the Ombudsman.

18) In March 2000, then Ombudsman Aniano A. Desierto, dismissed the complaint, concluding that “further investigation… [would be] a waste of time, considering that the physical evidence has already been tampered with, not to mention the lapse of time.”

19) In October 2005, the Philippine National Police corroborated the Navy’s position that Ensign Pestaño had committed suicide.

20) Notwithstanding these developments, the Pestaño spouses refilled the case on 27 October 2005 with the new Ombudsman, Simeon V. Marcelo, who found merit in their petition and reopened the case. However, upon Marcelo’s resignation on 30 November 2005, and the assumption of the office by Ma. Merceditas Navarro-Gutierrez, the case has languished uninvestigated before the same office up to the present day.

21) In April 2007, the Pestaño spouses filed a Communication before the United Nations Human Rights Committee (UNHRC) under the First Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) alleging that their rights had been violated by the actions taken by the Philippine Government, including the Office of the Ombudsman.

22) On 23 March 2010, the UNHRC issued its resolution on the matter (copy attached herewith as Annex “B”), declaring that the Philippine Government had violated its obligations under the ICCPR by failing to provide the parents of Ensign Pestaño “an effective remedy in the form, inter alia, of an impartial, effective, and timely investigation into the circumstances of their son’s death.”

23) This is a direct indictment of the failure on the part of the Office of the Ombudsman to act promptly and investigate the matter. The case, reopened in 2005, has languished before the office of Ombudsman Navarro-Gutierrez for nearly five years. An international body like the UNHRC, in contrast, took only three years to come out with a conclusive finding on the same case.

24) As stated by the UNHRC, the delay amounted to a violation of the Pestaño’s human right to an effective remedy. This clearly amounts to a dereliction of duty on the part of the Ombudsman, amounting to a betrayal of public trust.

iv. The declaration by the Ombudsman that Rep. Risa HontiverosBaraquel’s arrest in March 2006 was lawful is in flagrant violation of the law and amounts to a betrayal of public trust.

25) In March 2006, then Representative Risa Hontiveros-Baraquel was, against her will, physically restrained by members of the Philippine National Police, lifted into a mobile patrol vehicle, and taken to Camp Karingal in Quezon City. This occurred during a International Women’s Day rally at Welcome Rotunda.

26) Consequently Rep. Hontiveros-Baraquel filed a complaint for arbitrary detention and violation of parliamentary immunity under Article 124 and 145 of the Revised Penal Code.

27) Surprisingly, these complaints were dismissed by the deputized prosecutor of the Office of the Ombudsman on the ground that Rep. Hontiveros-Baraquel was not “arrested” but merely taken into protective custody. This ridiculous conclusion, which disregarded the legal definition of arrest, and which contradicted years worth of jurisprudence on the matter was eventually upheld by the Ombudsman.

28) This patently erroneous conclusion, constitutes a betrayal of public trust.

v. The failure of the Ombudsman to conduct an inquiry into the Le

Cirque dinner constitutes a betrayal of public trust.

29) On 12 August 2009, Representative Walden F. Bello wrote a letter (copy attached herewith as Annex “C”) to the Ombudsman calling for an inquiry into the P1,000,000.00 dinner at Le Cirque for the party of President Gloria Macapagal-Arroyo, on the ground that this raised the possibility of “illegal, or at the very least, improper acts committed by government officials.”

31) Again, despite this letter, and despite the widespread public and media clamor for an investigation, the Ombudsman failed to act, once more betraying the public trust reposed in her office to look into official wrongdoing and enforce accountability of public officers.

II.

CULPABLE VIOLATION OF THE CONSTITUTION

vi. The repeated delays and failures of the Ombudsman to take action on

32) The Ombudsman has in numerous instances, both in those cases discussed above, and in other cases, either failed to act promptly, or worse, failed to act at all in cases involving allegations of wrongdoing on the part of public officials. This is in clear breach of her general duty to act as “protector of the people,” and more specifically, her duty to act promptly under Article XI, Section 12 and Article III, Section 16 of the Constitution.

33) Taken together, the previous instances of delay or inaction, as discussed in the instant complaint, and in other cases, constitute a culpable violation of the Constitution.

vii. The refusal of the Ombudsman to grant ready public access to public documents such as the Statement of Assets and Liabilities and Net Worth violates 7 Article XI, Section 13(6) and Article III, Section 7.

34) The Office of former Representative Risa Hontiveros-Baraquel has, on several occasions, attempted to secure public records from the Office of the Ombudsman, in particular the Statement of Assets and Liabilities and Net Worth (SALN) of Rep. “Mikey” Arroyo, which is required to be filed pursuant to RA 6713, and records of cases pending before the Ombudsman against various public officials.

35) Invariably, in these cases, she has been refused ready access despite the fact that these are public documents which under the Constitution and RA 6713 are to be made available to the public.

36) These constitute clear and culpable violations of Article XI, Section 13(6) and Article III, Section 7 of the Constitution.

PRAYER

WHEREFORE, in view of the foregoing, it is respectfully prayed that OMBUDSMAN MA. MERCEDITAS NAVARRO-GUTIERREZ, after due compliance with the procedure set forth in Article XI, Section 3 of the Constitution, be found to have committed BETRAYAL OF PUBLIC TRUST and CULPABLE VIOLATIONS OF THE CONSTITUTION and accordingly, cause the instant Impeachment Complaint to be adopted as the Articles of Impeachment against Ombudsman Navarro-Gutierrez for transmission to the Senate for trial.

Other reliefs just and equitable under the premises are likewise prayed for.

Like this:

LikeLoading...

Related

Thank you very much for posting in this site the Electronic copy of the Impeachment Complaint against Ombudsman Merceditas N. Gutierrez. I need this document today badly as I have to draft a detailed briefing paper on this subject matter.